Supreme Court hears important case regarding human smuggling and the rights of refugees

On 16 and 17 of February, Amnesty International intervened in an important case before the Supreme Court of Canada involving the rights of refugees seeking Canada’s protection. At issue in the case was whether refugees who mutually assist each other in fleeing persecution should be considered people smugglers and as a result inadmissible to Canada and permanently barred from accessing protection under the United Nations Convention Relating to the Status of Refugees (Refugee Convention). The Court was also asked to determine whether Good Samaritans or humanitarian organizations that assist refugees in reaching safety should also be considered to be people smugglers, and prosecuted for their acts.

Amnesty International argued that “people smuggling” in the Immigration and Refugee Protection Act should be interpreted consistently with Canada’s international human rights obligations contained in the United Nations Convention against Transnational Crime, the Protocol against the Smuggling of Migrants by Land, Sea and Air, and the Refugee Convention. Under international law, people smugglers are those who assist individuals in crossing borders in order to gain a profit or other material gain. It’s this exploitative purpose that draws the correct distinction between criminal smugglers who prey off the human suffering of refugees, and refugees and good Samaritans who assist others in fleeing persecution for humanitarian or compassionate reasons.

A definition that is broader than the one put forward by Amnesty International would create a very real risk that refugees who are in genuine need of protection would be excluded from Canada merely because they helped other refugees reach safety. For instance, the government argued that while an individual man or woman coming to Canada to seek protection could not be inadmissible or criminally charged with people smuggling, that same man or woman would be barred from refugee protection and subject to prosecution if he or she fled to Canada with their children. Thus, refugees can be labelled people smugglers merely for assisting their close family members to flee persecution. So too will individuals who cook aboard ships transporting refugees to safety, or assist in navigation, as did the Appellants in this case. The consequences of being permanently barred from ever receiving refugee protection in Canada, risking deportation to a country where the refugee claimant faces persecution, and being subject to criminal prosecution, amount to violations of Canada’s international human rights obligations. They penalize refugees for having assisted others, and expose them to a risk of refoulement, contrary to articles 31 and 33 of the Refugee Convention.

Amnesty International was represented by Chantal Tie, Laïla Demirdache, and Michael Bossin, and they were assisted by Amnesty International’s articling student, Ania Kwadrans.